Hansard Blues

Committee of the Whole –

Section A

Draft Report of Debates

The Honourable Raj Chouhan, Speaker

4th Session, 42nd Parliament

Tuesday, October

17, 2023

Morning Sitting

Draft Transcript — Terms of Use

PROCEEDINGS IN THE

DOUGLAS FIR ROOM

Committee of the Whole House

BILL 27 — MONEY JUDGMENT

ENFORCEMENT ACT

(continued)

The House in Committee of the Whole (Section

A) on Bill 27; J. Routledge in the chair.

The committee met at 11:08 a.m.

The Chair: Good morning, Members. I call Committee of the Whole on Bill 27, Money Judgment Enforcement

Act, to order.

Clauses 42 and 43 approved.

On clause 44.

M. de Jong: Good morning. Given the time available, I'll try to be as brief as I can with any

preambles to questions.

Sub 44(1) — I'm interested in this aspect of it. It creates the authority for an enforcement

officer to delegate responsibility for a service of certain documents to, amongst

others, the judgment creditor, and then, with consent of the judgment creditor, others.

I'm going to focus on the judgment creditor.

My concern is this. Given that that authority exists, and given what I expect to be

the demands that will be placed on the civil enforcement officers, I fully expect

that they will wish to take advantage of that provision and say to judgment creditors,

"The obligation for service of documents will fall to you," requiring not only the

service of the document but the swearing of affidavits of service as well.

[11:10 a.m.]

This process was designed to streamline and make the enforcement of money judgments

easier. I'm not certain how requiring judgment creditors to perform that function

in the way that this contemplates is making that any easier.

Hon. N. Sharma: First, I just want to start by introducing the people that work with me today: Tyler

Nyvall and Darin Thompson are here. I'm grateful for their work and contribution.

This was a provision that was recommended by the Uniform Law Conference of Canada.

The purpose is to facilitate in circumstances where lawyers are in play, and it's

easier for lawyers to continue to play that role when it comes to the delegation of

that power or duty. It's important to note that under subsection (b), the judgment

creditor is by consent, so they can decline that in circumstances where they don't

feel like it's appropriate to take on that role.

M. de Jong: I understand the Attorney's answer with respect to sub (b).

Sub (a), as far as I read it, does not require consent. The civil enforcement officer

can delegate responsibility for providing notice to the judgment creditor. I don't

think the judgment creditor, unless I'm reading it incorrectly, has to consent to

that. That responsibility can be transferred to them, whether they want it or not.

[11:15 a.m.]

Hon. N. Sharma: I take the member's point about clarity. I'm told that the way this was drafted, this

section, subsection (2), brings the clarity that the member suggests where it says,

"A person who accepts a delegation under subsection (1)…." It ties to that consent

being important or necessary.

M. de Jong: All right. Well, let's be clear, then. Is the Attorney saying that if I am a judgment

creditor, I have secured my judgment, I have registered my judgment with the registry,

and it's now time to provide documentation to the judgment debtor, perhaps to come

in for an examination — that if the civil enforcement officer says to me, "We're busy

here; we're assigning responsibility for the service of these documents to you, the

judgment creditor," I as judgment creditor can say: "No, you're not; I don't agree;

your job; you do it"? Do I have that right?

Hon. N. Sharma: Yes.

Clause 44 approved.

On clause 45.

M. de Jong: There are two aspects to this clause that I just wanted to take a moment to explore.

It strikes me that depending on the case and the nature of the judgment debtor, this

can be a pretty complicated document, when I look at the kinds of instructions and

the kinds of information that need to be included.

Maybe I'll start with this. If I am an unsophisticated litigant who has my judgment,

has registered my judgment and knows who the judgment debtor is, am I able to say

to the civil enforcement officer, "Try to collect on my judgment," or do I have to

provide more specific instructions than that?

Again, I think the impression that was purposely left was that for folks who secured

a money judgment, they could register, go to a civil enforcement officer, and say:

"Here's my judgment. Go and collect, on my behalf, the money and any monies that are

owed to you relating to the cost of that collection." This seems to suggest that I

have to provide, as a judgment creditor, far more specific information.

Maybe I'm reading it incorrectly. Maybe I do have the option of saying to the civil

enforcement officer, "Go get them; go get my money," and that's it. I'm curious to

know how the Attorney believes this is going to work in practice.

[11:20 a.m.]

Hon. N. Sharma: We'll start with the principle that I think we have talked about quite a bit, which

is that the whole goal of this is to make sure that it's user-friendly and accessible

to everybody that needs to access these services.

Although parts of the legislation provide the powers to prescribe, it may not be necessary

to do that. The sections give that flexibility to refine the process over time.

To the member's question: when it comes to a person that would need extra help, first

of all, if you look at subsection (a), a simple statement of "please collect on all

property under this judgment" would suffice to meet that. Also, they can work with

either their lawyer, if they have one, or the chief enforcement officer to seek out

help if they need to.

M. de Jong: Well, in theory, that sounds promising. Maybe I'm wrong, but I've spent a little bit

of time in the court processes, and I don't know that the civil enforcement officers

in the office of the civil enforcement officers are necessarily going to have a place

where a judgment creditor can go and sit down and have a chat about how to most effectively

construct their enforcement instruction.

Now, if the Attorney is saying on the record here today, "Yes, they will," okay. But

that has not been my experience with any registry, or most registries, associated

with the judicial proceedings and collection proceedings.

Secondly, although it comes after this

part in the legislation, it strikes me that

a judgment creditor is only going to be in a position, given what's required in sub

45(2), to address the requirements of sub 45(2) with an enforcement instruction after

they have sat down and obtained information from the judgment debtor unless they may

possess some information independent of that.

Does the Attorney expect that, in many cases, it will be necessary to first proceed

with the request for the obtaining of information from judgment debtors and examination

of a judgment debtor before an enforcement instruction can be properly crafted?

[11:25 a.m.]

Hon. N. Sharma: To the member's first question about help, we will initiate and have a service contract

with the providers that we are asking to perform the service, and of course, we can

put in there expectations of service.

The starting point of that is to have a very low-barrier, potentially prescribed form

that allows people to be self-directed in their ability to fill it out. But barring

that, you could put in those contracts — we would — service standards that would be

about providing a level of support to people that would need it.

Starting with the low-barrier nature of the form, I'm told that Alberta and Saskatchewan

have a model that we're interested in looking at where it is very low barrier.

In terms of the second question that was about the order, the way this would probably

generally work would be that an enforcement instruction would contain a very broad

statement about "please collect and seize all property related to," and also asking

for a questionnaire and an examination. Through that process, if it's uncovered that

there needs to be a supplemental enforcement instruction provided, then that's something

that's also possible.

M. de Jong: Let's go down to sub 45(d). I know that the Attorney has done her best to point out

that, in the numerous sections that refer to the application of fees, she hopes and

believes they will be nominal.

But there will be fees associated with commencing an action. There will be fees associated

with registering at the registry. There will be fees associated with now registering

at the land title office. There will be fees associated with filing an enforcement

instruction.

In fact, when we look down at sub 45(d), we see three additional areas where the judgment

creditor is going to have to provide money.

There is going to be a fee simply for giving the enforcement instruction, which the

Attorney has pointed out may be a very straightforward document, but there will be

a fee associated with that.

There will be a written proposal of an agreement for payment of the officer's fees

and estimated expenses. That speaks to another cost that will be borne by the judgment

creditor. Then there is, in sub (d)(iii), the requirement to provide security in a

form and an amount that is satisfactory to the officer. So there are three additional

areas where the judgment creditor is obliged to provide money.

Can I ask this: what happens if a judgment creditor doesn't have the means to do that?

[11:30 a.m.]

and ability of the creditor to have more options and the ability to collect. As I've

mentioned many times in the discussion we've had about the drive to make sure that

the fees are low and accessible, that's a commitment that I've made, I think, on the

record multiple times. It's also one that's in the legislation in terms of it saying

"the prescribed fee for giving an enforcement instruction."

Whether or not and what amount we prescribe a fee, I think, is going to be important.

subsection (ii), the flexibility in there is "a written proposal of an arrangement

for the payment of the officer's fees." This would be an arrangement that, probably

for most purposes, would end up being just recoverable from the debtor once the property

is seized and sold or whatever happens to it. There's that ability to pay off those

fees.

And security — subsection (iii) — can be in the form of many different things. It

doesn't have to be in the form of a payment or money and probably, likely, wouldn't

be. It's a matter of risk management and appropriation of risk in terms of what happens.

We think we struck the right balance with those considerations.

M. de Jong: Well, I'll take a bit of issue with one thing the minister said. I don't doubt that

this is the hope. But security is going to be money.

[11:35 a.m.]

I mean, we know that the folks that do this work do an estimate of what it's going

to cost and how many people they're going to need. Do they have to store goods? They're

going to say: "Oh, we're not assuming that risk." So to the judgement creditor, they

say…. And this….

In even seizing a vehicle, very quickly, it adds up to in excess of $1,000. I think

that the minister knows that, not from her personal experiences but professional experiences.

The costs associated with this grow quickly, and yes, ultimately, they are costs that

can be passed on to the judgment debtor.

But my point and my actual question was: given the collective nature of the fees,

the security, what happens when a judgment creditor is confronted by the request?

It says: "Okay, you've got all these fees you've paid, and you've got to pay one more."

I think my costs are going to be, as the civil enforcement officer and my team, as

follows, and I need to be sure that you can cover that. Whether that's a deposit on

a credit card or whatever that security is, that ties up capital.

Oh, and by the way, we have to store the goods we're seizing. We have to send out

people to do that. We need to rent the trucks. We need to do all of that, and we need

security from you in the amount of…. I don't think it's an exaggeration that it's

going to be thousands of dollars or $1,000, depending on what the….

What happens when the judgment creditor, after doing all the work, says: "Well, I

can't do that. I don't have that"? What happens then?

[11:40 a.m.]

Hon. N. Sharma: I appreciate this discussion because it helps us clarify what happens in a situation

where somebody is really unable and in need of this service. I want to kind of talk

through that in some detail — about how it's designed to be low barrier. I mentioned

before that the way this would be handled is through service delivery contracts with

the providers, so there's an ability for us to have that discussion at that point.

I'll start with this idea of somebody who is, like: "I have nothing, and I really

want to go after the money. Is this provision under subsection (

d) going be a barrier

for me to do that?" The prescribed fee, as I mentioned before, will be set to be considered

a nominal amount to get. That would be the upfront money that the person would likely

have to pay. Right?

The other two provisions are risk management, really. The first one is their written

proposal and arrangement. Likely that proposal would say: "There's no money up front,

but we'll make a deal that once we collect…." I think the scenario that the member

provided was if there is a storage of an asset. If we're at the stage of a storage

of an asset fee, then we know we have an asset that's going to be sold and able to

recover any of the fees that were associated with that storage.

The member brought up the security component. I just want to say, again, that the

security does not have to be in the form of money. There could be many scenarios where

it's a registered interest in some other form of property or something that helps

to mitigate the risk taken on by the enforcement officer. Generally speaking, it could

be that the only actual upfront cost is that prescribed fee, which, if prescribed,

would be nominal in the sense of what it is.

The Chair: Member, we'll give you an opportunity to get another question on record and then pick

it up after lunch. How's that?

M. de Jong: I'll make a brief reply, which I think will be my last submission on this point before

we go to

section 54 if we want to do that before the break and pass the other sections

leading up to

section 54.

I'll only say this. I understand the minister's optimism with how the construct will

work. The bottom line, though, is that the discretionary authority for setting security

is left entirely with the enforcement officers.

My experience tells me that — I am less optimistic — they won't simply say: "We need

X number of dollars before we are prepared to engage in certain collection-type activities."

I'm not sure there's any authority created beyond that which is set out here that

could constrain the folks in that regard. If that happens, the judgment creditor is

left with a hollow instrument. If they aren't able to satisfy these requirements….

They have got their judgment, they've registered it, they've got to this point and

now it is unenforceable.

I hope the minister is right. I am concerned that in practice, she may not be.

Clauses 45 to 53 inclusive approved.

Hon. N. Sharma: I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 11:45 a.m.

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